California Court of Appeal Jul 5, 2022 No. E077436Unpublished
Filed 7/5/22 P. v. Wulff CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077436
v. (Super.Ct.No. FWV21000016)
PHILLIP DALLAS WULFF, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Corey G. Lee,
Judge. Affirmed.
Heather E. Shallenberger, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Daniel Rogers, Acting Assistant Attorney General, Steve Oetting and Amanda
Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted defendant and appellant Phillip D. Wulff of driving while under
the influence of alcohol (Veh. Code,1 § 23152, subd. (a), count 1) and driving with a 0.08
percent or more blood-alcohol content (Veh. Code, § 23152, subd. (b), count 2). A trial
(Hernandez); see People v. Matute (2002) 103 Cal.App.4th 1437, 1448 (Matute).) Under
Watson, a judgment cannot be reversed unless there is a reasonable probability that the
jury would have reached a more favorable verdict if the error had not occurred. (People
v. Watson (1956) 46 Cal.2d 818, 836.) Under Chapman, we must “conclude beyond a 8
reasonable doubt that each juror agreed on the particular criminal act that formed the
basis of the verdict.” (Hernandez, at p. 578.)
In his closing argument, the prosecutor referred to the jury instruction that defined
driving (No. 2241) and argued that L.M. “put[] the defendant in the driver’s seat, and he
backs it up into the parking stall. He intentionally caused it to move into the parking
stall. No matter how slight it is, he moved it while under the influence of alcoholic
beverage . . . So when you go to the jury room, you don't even have to debate [J.H.]
versus [L.M.] versus [H.B.] [Defendant] backed up the car while under the influence of
an alcoholic beverage. Find him guilty of [] driving under the influence, and driving
with a .08 blood alcohol concentration. Thank you.” (Emphasis added.) The prosecutor
clearly explained to the jury that defendant was guilty of driving while under the
influence of alcohol because he drove when he backed up the truck to park it. Moreover,
while the evidence was disputed as to whether defendant was the driver who drove the
vehicle from the bar to the apartment complex, the evidence was not disputed that
defendant was the driver who backed the truck into the parking stall. The affirmative
evidence specifically pointed to defendant as the driver who parked the truck in the
parking stall, and there was not a scintilla of evidence that it could have been anyone else.
Thus, while the jury may not have all agreed that defendant drove to the apartment
complex, there is no reasonable doubt on this record that it found that defendant did drive
the vehicle into the parking stall. We further note that “where the defendant offered the
same defense to all criminal acts and ‘the jury’s verdict implies that it did not believe the
only defense offered,’ failure to give a unanimity instruction is harmless error.” 9
(Hernandez, supra, 217 Cal.App.4th at p. 577.) Defendant’s only defense was that L.M.
drove the truck, not him.2 Therefore, any error in failing to give the unanimity
instruction was harmless beyond a reasonable doubt. Further, there is no probability on
this record that defendant would have received a more favorable verdict if a unanimity
instruction had been given.
In sum, defendant conceded that he was under the influence, and L.M. testified
that defendant parked the truck. Defendant’s only defense was that he did not drive.
However, in finding him guilty of driving under the influence of alcohol, the jury
necessarily found that defendant drove the truck. Based on the evidence presented, the
guidance given by the court’s instructions, and the prosecutor’s closing argument, we are
convinced beyond a reasonable doubt that the jury unanimously agreed defendant drove
the truck at least long enough to park it. Thus, any error in not giving the unanimity
instruction was harmless under the Chapman standard. (See Matute, supra, 103
Cal.App.4th at pp. 1449-1450.) For the same reasons, we conclude it is not reasonably
2 In his reply brief, defendant claims that his defense to each act “was different in that he argued two different people drove the truck: [L.M.] drove from the 210 Tavern to appellant’s apartment complex and someone other than appellant parked it.” However, in his closing argument, defense counsel merely asserted that L.M. said she did not know who parked the truck. We note that L.M. testified that defendant backed the truck into the parking space. Furthermore, contrary to defendant’s claim in his reply brief, there was no evidence that anyone other than defendant parked it.
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probable that defendant would have obtained a more favorable verdict had the unanimity
instruction been given.3
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS Acting P. J.
We concur:
RAPHAEL J.
MENETREZ J.
3 In its brief, the People additionally contend the abstract of judgment incorrectly reflected that the sentence imposed on count 2 was imposed concurrently, when it was actually stayed pursuant to Penal Code section 654. We note that, subsequently, appellate counsel submitted an informal request to the court to correct the abstract of judgment accordingly and an amended abstract of judgment was filed on November 22, 2021, reflecting the change.
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AI Brief
AI-generated · verify before citing
Holding. Any error by the trial court in failing to provide a sua sponte unanimity instruction was harmless because the evidence regarding the defendant's act of parking the vehicle was undisputed and the prosecutor effectively elected that act as the basis for the conviction.
Issues
Whether the trial court erred by failing to provide a sua sponte unanimity instruction regarding the defendant's driving acts.
Whether any failure to provide a unanimity instruction was harmless error.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude that any failure to give a unanimity instruction was harmless.”
“The prosecutor clearly explained to the jury that defendant was guilty of driving while under the influence of alcohol because he drove when he backed up the truck to park it.”
“any error in failing to give the unanimity instruction was harmless beyond a reasonable doubt.”